EPA contractors

EPA Extends Deadline For PFAS Comments To September 28, 2018

Holland & Knight
Dianne Phillips and Deborah E. Barnard

September 9, 2018

In the wake of the PFAS National Leadership Summit convened by the U.S. Environmental Protection Agency (EPA) on May 22-23, 2018, EPA opened a public docket to solicit comments on per- and polyfluoroalkyl substances (PFAS), a category of man-made chemicals that have been widely used to make products because of their stain-resistant, waterproof and/or nonstick properties. Specifically, EPA seeks to obtain information on ongoing efforts to characterize risks from PFAS, as well as develop monitoring and treatment and cleanup techniques, to inform near-term actions needed to address challenges currently facing states and local communities, and to develop risk communication strategies to address public concerns with PFAS. The original comment deadline of July 20, 2018 was recently extended to Sept. 28, 2018.

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LSRP Corner: Capping of Volatile Contaminants for the Impact to Groundwater Pathway

Synergy Environmental, Inc.
Dennis Libenson, LSRP

September 18, 2018

The New Jersey Department of Environmental Protection (NJDEP) Soil Remediation Standards addresses the soil to groundwater pathway in unsaturated soils (i.e., the vadose zone) by providing Default Impact to Groundwater Soil Screening Levels, along with several options for establishing site-specific Impact to Groundwater Soil Remediation Standards. The NJDEP also issued guidance regarding compliance and/or remediation options to address the contamination.  One such option is the installation of a low-permeability cap to prevent migration to groundwater.

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New Jersey Continues to Lead the Regulation of PFAS

Manko Gold Katcher & Fox
John F. Gullace and Darryl D. Borrelli

September 11, 2018

While the Federal Government continues to debate whether and how to regulate per- and polyfluoroalkyl substances (“PFAS”), New Jersey continues to lead the charge to regulate these substances. On September 4, 2018, the New Jersey Department of Environmental Protection (“NJDEP”) “adopted amendments to the New Jersey Safe Drinking Water Act (SDWA) rules … to establish … a maximum contaminant level (MCL) for perfluorononanoic acid (PFNA) of 0.013 micrograms per liter (ug/l) … .” (or 13 parts per trillion).

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For a Clean Slate, Don’t Forget About EPA’s Audit Policy

Kelley Drye & Warren LLP
Joseph J. Green

September 13, 2018

After almost a decade of neglect, EPA is once again actively encouraging facilities to utilize the agency’s Audit Policy to “address noncompliance in an efficient and timely manner.” Over the last several months, EPA has taken steps to promote use of the “e-Disclosure” system and to remind regulated entities of the benefits of the Audit Policy, which allows for substantial (near 100% in many cases) penalty reductions for violations that are self-disclosed and promptly corrected.

In announcing the launch of the new campaign on May 15th, EPA declared the agency’s “renewed emphasis on encouraging regulated entities to voluntarily discover, promptly disclose, expeditiously correct, and take steps to prevent recurrence of environmental violations.” This renewed emphasis is consistent with the current EPA’s focus on improving compliance through mechanisms, including voluntary self-correction, that achieve environmental goals more quickly and in a less costly, adversarial and time-consuming manner than traditional enforcement means.

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Potential Parent Company Liability Under CERCLA Based on Shared Services Model

Jones Day
Jane Borthwick Story and Mary Beth Deemer

September 12, 2018

In Short

The Situation: At least one court since Bestfoods has held that an organizational model whereby a parent company provides shared or centralized services to subsidiaries can result in direct liability for the parent company under CERCLA.

The Result: Parent companies may face direct liability under CERCLA depending on the structure of their shared services models.

Looking Ahead: Companies may want to consider how the structure of their shared services practices may impact their potential CERCLA liability.

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Phase I Environmental Site Assessments: What You Need to Know to Close Your Deal

Spencer Fane LLP
Andrew C. Brought

August 10, 2018

This article was originally published in the fall 2015 SIOR Professional Report and written by Andrew Brought. The information remains extremely relevant to businesses making property transactions.

As someone who frequently helps businesses buy and sell commercial and industrial properties, I frequently encounter misunderstandings about Phase I Environmental Site Assessments (ESAs) and their role in a property transaction. Although not an exhaustive list, these 10 items are among the most important you should know about for your next property transaction.

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EPA contractors

The EPA Proposes Affordable Clean Energy (ACE) Rule

Synergy Environmental, Inc.
Brink Young

August 22, 2018

On August 21st, the US Environmental Protection Agency (EPA) proposed a new rule to replace the Obama Administration’s signature climate change regulation. This new plan is designed to scrap the Clean Power Plan and replace it with the Affordable Clean Energy (ACE) Rule. This new rule will establish guidelines for states to use when developing plans to limit GHG’s at their power plants. The ACE Rule is intended to empower states, boost energy independence and aid economic growth and at the same time promoting job creation.

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Cooperating with Environmental Regulators Could Cost You Your Coverage on Historical Contamination Sites

King & Spalding LLP
Craig Stanfield

August 15, 2018

Reprinted with permission from Texas Lawyer. © 2018 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

If you manage environmental issues, receiving an unexpected letter from EPA or a state environmental regulator about historic contamination could be the start of a years-long and expensive project. Whether these costs are borne by your company alone or are covered by insurance policies is a question you should raise early with coverage counsel.

The site at issue could be one that no one has ever heard of and for which your company may have scant to no records. Your company’s involvement could have been brief and perhaps insubstantial. Some predecessor entity, which may not operate any longer, could have simply arranged for a small amount of waste to be deposited in a landfill or may have operated briefly at a site. And that activity could have been done entirely in line with standards of the day. But none of those arguments may be enough to avoid investigating and remediating the site.

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New Jersey Kicks Off a New Era of Environmental Enforcement with the Filing of Six New Lawsuits for Natural Resource Damages & Cost Recovery

Manko Gold Katcher & Fox
John F. Gullace and Nicole R. Moshang

August 6, 2018

It has been a decade since the State of New Jersey filed a lawsuit to recover natural resource damages (NRDs) for harm to environmental resources that arose from the contamination of soil or water. On August 1, 2018, the state filed three NRD lawsuits and initiated several cost recovery actions to recover funds incurred by the New Jersey Department of Environmental Protection (NJDEP) at several sites. In a press release and at two press events Commissioner McCabe and Attorney General Grewal described the six new lawsuits as the beginning of a new era of environmental enforcement in New Jersey. According to Attorney General Grewal: “Today is just the beginning. We are going to hold polluters accountable – no matter how big, no matter how powerful, no matter how long they’ve been getting away with it. And we’re sending a message to every company across the state: if you pollute our natural resources, we are going to make you pay. … Today, we’re back in the environmental enforcement business.”

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Drinking Water Providers Seek Pause in Rush to Set MCLs for Emerging Contaminants

Jenner & Block LLP
Steven M. Siros

August 3, 2018

The presence of emerging contaminants such as perfluorinated chemicals (PFOS) and 1,4-dioxane in drinking water often make the headlines as sampling technologies become more sophisticated and these contaminants are being detected with increasing frequency in drinking water systems across the country. There has been a significant push to compel regulators to set regulatory standards and/or issue health advisories for these emerging contaminants, but the impact that these standards and health advisories have on drinking water systems cannot be ignored.

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